The last part of 2016 has not brought much positive news on justice and accountability across Africa. No less that three States — Burundi, South Africa and Gambia — announced they were withdrawing from the International Criminal Court. With no other court to take on the ICC’s role at this time, one could not be blamed for a less than rose-colored outlook on the prospect of government accountability on the continent.
Looking at the regional human rights system, however, there is some good news to report. All regional human rights courts, such as the African Court on Human and Peoples’ Rights, have been handing down judgments that set a high bar for the protection of press freedom, and their implementation is steadily progressing. With press freedom being one of the key guarantors of transparency and democracy, these developments give rise to the hope that these courts can act as important enforcers of good governance, creating a climate of increased government accountability throughout Africa.
In December, the case of Lohé Issa Konaté v. Burkina Faso was resolved when Burkina Faso fully complied with the Court’s order. The Konaté case was the first judgment of the African Court on Human and Peoples’ Rights concerning laws criminalizing speech, in this case criminal defamation. Mr. Konaté, the owner and editor of a weekly Burkinabe newspaper named “L’Ouragan” (The Hurricane), was criminally convicted in 2012 for publishing a set of articles accusing a local public prosecutor of corruption. He was sentenced to a year imprisonment, payment of fines and damages amounting to 18 times the average annual salary in Burkina Faso, and forced to shut down his newspaper. In December 2014, the African Court found that Burkina Faso had failed to live up to its obligations regarding the right to freedom of expression under the African Charter, the International Covenant on Civil and Political Rights and the Revised Economic Community Of West African States Treaty. The Court ordered Burkina Faso to amend its laws by abolishing the penalty of imprisonment for defamation, which it complied with in 2015. In May 2016, Mr. Konaté was awarded $70,000 in reparations, the highest sum yet awarded to an individual by the Court. The money was paid this month.
The Konaté case is one of a handful of cases that show the role regional human rights courts can play in fostering government accountability and good governance. In 2015, the African Court held Burkina Faso accountable for failure to investigate the murder of investigative journalist Norbert Zongo. This judgment has also been carried out, with Burkina Faso paying reparations to several of Mr. Zongo’s beneficiaries. That same year, the East African Court of Justice, a court that had been denied explicit human rights jurisdiction by the East African Community Partner States due to their refusal to ratify the relevant protocol, found itself competent to hear press freedom cases and found several provisions of Burundi’s new Press Law at odds with the country’s obligation to adhere to the principles of “democracy, the rule of law, accountability, transparency” as prescribed by the East African Community Treaty. While implementation in the country itself has been problematic due to recent political developments, the case has opened the door for other press freedom cases being brought at the Court. One example is a currently pending challenge of Uganda’s criminal defamation law.
Writing in the South African Sowetan newspaper on Dec. 10, 2015, the African Union Special Rapporteur on Freedom of Expression, Pansy Tlakula, emphasized the ripple effect of accountability that these judgments can have. Ms. Tlakula commented: “The Konaté judgment is a landmark judgment that will change the free expression landscape on the continent.” She focused on the judgment’s potential in supporting challenges to not only criminal defamation laws across the continent, but also other laws criminalizing speech, such as sedition and false news laws, all of which are regularly used to suppress critical journalism. So far, the Konaté judgment has not only been used to challenge criminal defamation in a number of African countries, but it has also been referenced in a challenge to criminal defamation in India.
The changes Burkina Faso made to its laws, following the African Court judgment, mark a significant step forward, as do the prompt payment of reparations to Mr. Konaté. They illustrate the important role the regional human rights courts can play in holding governments accountable to their citizens. This gives rise to optimism about the contributions these courts can make going forward, ensuring that the international standards that countries have signed on to are actually upheld. By helping to ensure press freedom, these courts are strengthening the stability of these countries. Importantly, they also offer an appealing alternative to the employment of more heavy-handed measures, including national security ones, because it keeps intact the countries’ potential for growth and supports their development.
Freedom of expression is often referred to as the cornerstone of a democratic society, and research by the World Bank in Sub-Saharan countries showed that developed media systems with a high level of press freedom were less likely to experience violent political uprisings and transitions.
“Generally speaking, in a State where public discussion exists and the media can deal freely with the problems of society, large-scale violence is not tolerated,” a UNESCO special report on press freedom and development found. Encouraging the free flow of information in a society, in which the press has a crucial role to play, therefore not only allows for a marketplace of ideas that fosters development of a society as such, it also helps reduce the likelihood of internal instability and violence. The courts can also assist in clarifying what the obligations are for countries to support a free press, and can provide effective recourse when countries stray off track.